Human rights and judicial review in the past year – Part 2/4: Articles 3 and 5
22 October 2010
Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).
A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.
Article 3 as a ground for anonymity
The Supreme Court granted anonymity to a person subject to a control order, in part because to refuse anonymity could risk an infringement of his rights under Article 3. He was living in a town with “considerable community tensions” where there was “organised racist activity”. The case is an early example of an anonymity order being granted since the slightly earlier decision of the SC In re Guardian News and Media Ltd  UKSC 1, following which the Courts have been scrutinising applications for anonymity of parties with much more rigour.
Article 3 threshold
R (P) v. SSHD  EWHC 1087
A childless asylum seeker from India might suffer awkwardness and distress in her community, and exclusion from social events by reason of her infertility, but that did not amount to degrading treatment under Article 3.
ARTICLE 5: Right to Liberty
Article 5 and the Mental Capacity Act 2005
In relation to deprivation of liberty cases involving persons lacking capacity, the CA found that the Court of Protection had correctly ruled that Article 5 did not create threshold conditions which had to be satisfied before it was open to the court to consider what was in the individual’s best interests in exercising its powers under the Mental Capacity Act 2005. The 2005 Act was held to embrace the principles set out in Article 5, and the Article 5 safeguards were reflected in the 2005 Act regime.
Control orders: relevance of Article 8 factors to Article 5
A condition in a control order that interfered with the controlled person‟s Article 8 right to respect for his private and family life, but was justified under Article 8(2), could nevertheless be a decisive factor in creating a deprivation of liberty in breach of Article 5. As had been held by the HL in Secretary of State for the Home Department v JJ  1 AC 385, deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest. The court‟s task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living.
Damages for breach of Article 5
Guidance was given as to the correct approach to assessing damages for a violation of Article 5. ECHR decisions, rather than the domestic scales for false imprisonment, provided the appropriate reference point.
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